Appeal from Clallam Superior Court. Docket No: 10-2-00704-3. Date filed: 03/29/2011. Judge signing: Honorable George Lamont Wood.
Susan I. Baur, Prosecuting Attorney, and Douglas E. Jensen, Deputy ; and Toby Thaler, for petitioners.
Craig L. Miller (of Craig L. Miller PS ), for respondents.
AUTHOR: Thomas R Bjorgen, J. We concur: J. Robin Hunt, P.J., Joel Penoyar, J.
[176 Wn.App. 927] Bjorgen, J. --
¶ 1 We granted the petition for discretionary review by Clallam County and Upper Elwha River Conservation Committee (collectively County) for review of a trial court order entered under the Land Use Petition Act (LUPA), chapter 36.70C RCW. Mike and Susan Shaw and George and Patricia Lane (collectively Shaw) filed the LUPA petition, alleging that the County erroneously designated portions of their property as an erosion hazard and, therefore, a critical area under Clallam County's Critical Areas Code (Code). The superior court " remanded" the case to the administrator of Clallam County's Department of Community Development (Administrator) to define a relevant term in the Code " using a proper standard based upon and in the context of erosion hazard areas." Clerk's Papers (CP) at 117. Because the remand order exceeds the broad discretion LUPA grants the superior court to review land use decisions, we vacate the order and remand the matter to superior court for a decision based on the record before the County hearing examiner.
¶ 2 Shaw proposes to operate a rock quarry on land adjacent to the Elwha River in
Clallam County. Shaw sought a preliminary site evaluation from the Administrator to determine whether the land qualifies as a " critical area" under the Code because it poses a landslide or erosion hazard. The Code designates all slopes " forty (40) percent or steeper with a vertical relief of ten (10) or more feet, except areas composed of consolidated rock " as critical areas due to erosion hazard. Clallam County Code 27.12.410(1)(b)(iii) (emphasis added).
[176 Wn.App. 928] ¶ 3 Shaw submitted various site reports prepared by qualified professionals, including a 1999 soil survey and geotechnical engineering report prepared by licensed engineering geologist Allen Hart; a 2008 Geologic Hazard Evaluation Special Report prepared by licensed professional engineers with ADA Engineering LLC; and supplemental materials from both Hart and ADA Engineering. The parties do not dispute the essential findings of these reports. These findings show that much of the site consists of slopes 40 percent or steeper, with a soil layer at the surface approximately one to three feet deep, which is underlain by solid basalt and largely covered with trees and shrubs.
¶ 4 The authors of the ADA Engineering Report explicitly concluded that the site should be exempt from the Code because the steep slopes " are composed of consolidated rock." Ex. 7, at 6-7. The evidence cited to support this conclusion consists of photographs showing a roadway cut on the site, with what appears to be a layer of soil one to three feet deep over solid bedrock. The earlier and more comprehensive Hart report appears to undermine the ADA Engineering Report's conclusion, noting that " portions of the property meet the Clallam County criteria for an erosion and landslide area" and that " some site soils may be easily eroded." Ex. 9, at 6, 11.
¶ 5 After reviewing the reports Shaw provided, the Administrator determined that although the property posed no landslide hazard, portions of the site did pose an erosion hazard. The Administrator concluded that the layer of soil at the surface established that the steep slopes were not " composed of consolidated rock" for purposes of the exception to the code designation of slopes steeper than 40 percent as erosion hazard areas. CP at 871-72. The Administrator acknowledged the conclusion of the ADA Engineering Report and discussed the findings of both the ADA Engineering and Hart reports, explaining in some detail why the reports failed to persuade him that the site did not qualify as an erosion hazard.
[176 Wn.App. 929] ¶ 6 Shaw appealed the Administrator's decision to the Clallam County Hearing Examiner (Examiner). As part of an open-record hearing, the Examiner considered definitions and usages of the phrases " consolidated rock" and " composed of consolidated rock," as well as related terms, in various scientific, technical, and nontechnical sources, including sources provided by Shaw. Ex. 38-39. The Examiner ultimately affirmed that the slopes were not composed of consolidated rock and therefore qualified as a critical area due to the erosion hazard.
¶ 7 The Examiner reaffirmed this determination on reconsideration, and the Board of County Commissioners twice upheld the Examiner's decision in closed-record proceedings. Shaw then appealed to the superior court under LUPA. Shortly thereafter, Shaw brought a second LUPA action, claiming an equal protection violation because the County had allegedly applied the Code differently to similarly situated land ...